Atlanta, GA asked in Criminal Law and Constitutional Law for Georgia

Q: Can an active first offender case be used to enhance a sentence under the 17-10-7 statue?

2 Lawyer Answers
Glenn T. Stern
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  • Criminal Law Lawyer
  • Atlanta, GA
  • Licensed in Georgia

A: After the state provides sufficient notice, OCGA § 17-10-7 requires that a trial court sentence a defendant to the maximum under subsection (a) if the defendant already has a felony conviction and commits a new felony while incarcerated, or (c) on a subsequent felony conviction after a defendant has already been convicted of three prior felonies. Subsection (b) requires that a defendant be sentenced to life without parole for a serious violent felony if that individual has already been previously convicted of a serious violent felony.

However, an active First Offender case would not be a "conviction" for sentencing purposes under OCGA § 17-10-7 because no formal adjudication on the case has been entered into the record. That being said-if the state were able to to revoke the first offender status based on the current case, it could do so, the defendant would be formally sentenced for the First Offender case, and it would then count as a conviction under OCGA § 17-10-7 for the current case.

James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: Under Georgia law, an active first offender case generally cannot be used to enhance a sentence under the 17-10-7 statute. The First Offender Act is designed to give individuals a second chance by not considering the first offense as a conviction, provided they comply with the terms of their sentencing. Therefore, until the first offender status is revoked or successfully completed, it should not be treated as a conviction for sentencing enhancement purposes.

However, if a first offender status is revoked due to a violation of its terms, the original offense may then be considered a conviction and could potentially be used for sentence enhancement under the 17-10-7 statute. It's important to adhere strictly to the conditions of your first offender status to avoid this scenario.

To fully understand how your specific situation might be affected, consult with a legal professional who can provide advice based on the details of your case. This will help ensure your rights are protected and you receive accurate guidance.

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